Will Brett Kavanaugh be a legitimate Supreme Court justice?
Sen. Ed Markey, a Democrat from Massachusetts, tweeted that Kavanaugh’s nomination “is tainted and should be considered illegitimate.” Ten Democratic senators signed a letter warning that his confirmation hearing risks becoming “uninformed, illegitimate, and an abdication of our constitutional duties.” Paul Krugman’s latest New York Times column said Kavanaugh’s confirmation would lead to “a Supreme Court in which two seats were effectively stolen.”
Kavanaugh is an unusually unpopular nominee — only 38% of Americans support his appointment — of a president whose approval stands at around 40%, and who received 3 million fewer votes than his election opponent. That president is now seeking to appoint a Supreme Court judge who would cast the deciding vote if any of his many ongoing legal problems escalate into a full-blown constitutional crisis.
Kavanaugh may also have lied under oath, and some Democrats are already talking about impeaching him should he be appointed to the Supreme Court. That’s permitted by the Constitution, but removing a justice would be totally unprecedented.
But does any of this make Kavanaugh “illegitimate”? Legitimacy is not a legal or constitutional concept, and none of the considerations listed above strictly matter. Donald Trump was legitimately chosen by the electoral college, regardless of his popular vote loss, his alleged criminal behavior, and whatever role Russia or James Comey may have played in swinging the election outcome. He was legitimately sworn in by the chief justice of the Supreme Court. Republicans legitimately hold a bare majority of the Senate, which legitimately gives them the power to confirm any judicial nominee Trump appoints, regardless of that nominee’s popularity and regardless of any objections raised by Senate Democrats.
All this seems deeply unfair. Every aspect of politics under Trump does, especially if you were under the impression that the United States is a democracy. And one of the most striking features of the Trump era has been the maddening disconnect between how we talk about the US political system and how it actually functions. We are more comfortable questioning the legitimacy of individual actors within the system than we are questioning the legitimacy of the system itself.
The case that the US is not a democracy is almost clichéd at this point, but briefly: An undemocratic electoral college has awarded the presidency to the less popular candidate twice in the last five elections, in both cases to a Republican. The Senate grossly overrepresents the populations of small states, effectively inflating rural and disproportionately white regions over the most diverse and densely populated parts of the country, such that a Wyoming resident has about 68 times as much representation as a California resident. Districts in the House of Representatives are determined by partisan gerrymandering that in recent years has heavily benefited Republicans, such that Democrats, by some estimates, need to win the popular vote by 11 points to gain a House majority. The Supreme Court consists of nine unelected justices with lifetime appointments. Voter suppression tactics targeting Democratic-leaning constituencies are proliferating without any legal check, especially since the Supreme Court gutted the Voting Rights Act in 2013. Finally, every aspect of this system is underwritten by a flood of unaccountable dark money from the wealthiest percentile of Americans. To say America is not governed like a democracy at the federal level is a fact, not an opinion.
But this isn’t what most Americans think, or what most other people think about America. It’s certainly not what most journalists think. Jeffrey Rosen, for instance, has a piece this week in the Atlantic arguing that America under Trump is an example of the “mob rule” that founding father James Madison, the primary drafter of the Constitution, warned about. But in fact, Trump would not be president at all if it were up to the “mob” (that is, the majority of the American public), as opposed to the undemocratic constitutional mechanisms designed by Madison.
This is why we constantly see journalists, activists, and politicians trying to vocally shame Republicans who barely even pretend to act in the public interest. It’s happening now with Kavanaugh, but it’s also happened at every major juncture of the Trump presidency. The Obamacare repeal, which came within one John McCain stunt of passing both houses, was wildly unpopular with the public, supported by a mere 36% as it was being debated. So was the massive tax cut that McCain ultimately did vote for, Trump’s main legislative accomplishment, which only 27% of the public supports (a higher percentage, most likely, than will benefit from it). So is building a wall along the US–Mexico border, opposed by 57%, and doing nothing whatsoever to increase firearm regulation, even though 67% of Americans support more regulation in the wake of an epidemic of mass shootings. Overturning Roe v. Wade, as many believe Kavanaugh will if appointed to the Supreme Court, is opposed by 71% of Americans.
On issue after issue, the evidence is clear: The federal government is dramatically more conservative than the American public. Given that the institutions that make up the federal government are all structurally undemocratic, that shouldn’t come as a surprise. And yet it does, because most of us take it as an article of faith that we live in a democracy. So we have the frequent specter of mainstream pundits incredulously asking Republicans to please take the views of the American public into consideration, without ever questioning the legitimacy of the system that enables those same Republicans to do nothing of the sort.
All of this makes a lot more sense if the US government is viewed as what it was originally designed to be: a system of minority rule for propertied white men. As Slate’s Jamelle Bouie has written, just about everything the Republican Party does to secure its own power is explained by the desire “to preserve a white majority in American politics” in the face of rapid demographic change. This is the common thread connecting the permanent disenfranchisement of felons, who are disproportionately nonwhite; the stripping of citizenship of naturalized immigrants from Latin America; the blatantly racist gerrymandering of states like North Carolina; voter suppression in heavily black cities like Milwaukee; and countless other tactics Republicans employ to ensure a white-dominated electorate that will support their increasingly unpopular policy preferences.
Democratic processes aren’t entirely absent from the American political system. It is still possible to mobilize voters in sufficient numbers to overcome these obstacles, and it is plausible, though by no means assured, that Democrats will manage to do so this November in their quest to take back one or both houses of Congress. But even if they succeed, they will still be badly underrepresented relative to their actual popularity, and they will still confront a president who has never enjoyed a popular mandate — not to mention a Supreme Court on which, in all likelihood, four of the nine justices will have received lifetime appointments from presidents who lost the popular vote. And all of this, of course, is perfectly legal.
Neither Trump nor his judicial nominees lack legitimacy. They are the products of an undemocratic Constitution that enumerates their powers, and the sooner that Democrats begin questioning its basic assumptions, the sooner we can begin a serious debate on how to fix them. There’s a learned helplessness in complaining that an undemocratic system produces undemocratic results.
In the months and years to come, Democrats will have to adopt a forceful procedural radicalism that treats the Constitution as an obstacle to a political system that is genuinely accountable to the public. They are right to lay the groundwork for impeaching Kavanaugh, but they shouldn’t stop there; they should do what Republicans have been doing all along and abuse the Constitution as necessary across all fronts to advance their naked partisan interest. And when they do so, they should justify it not by invoking the Constitution, but by invoking the will of the American people.
David Klion is a writer based in Brooklyn. His work has appeared in the Nation, the New York Times, the Guardian, and elsewhere. He tweets at @DavidKlion.